Tuesday, March 24, 2009
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C.A. Rules Partial Stays Toll Limitations Period for Trial Dates
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal ruled 2-1 yesterday that partial stays, including those issued as part of a court’s active management of a complex or coordinated action, toll the five-year limitations period for bringing cases to trial.
Reasoning that “prosecution” of an action encompasses all steps, Justice Richard M. Mosk, joined by Justice Orville A. Armstrong, wrote that a trial court erred when it relied on time during which a discovery stay remained pending to dismiss an action against senders of unsolicited advertisements via facsimile machine.
However, Presiding Justice Paul Turner questioned whether the trial court’s management of the action—during which many pretrial activities were completed—could be considered a stay. He dissented that even if something akin to a “partial stay” existed, it still would not toll the limitations period under current statutory language.
Unsolicited Advertisements
Dana Bruns sued advertisers in 2000 in the Orange Superior Court for allegedly sending faxed advertisements in violation of the Telephone Consumer Protection Act of 1991. The case was initially transferred to the Los Angeles Superior Court and discovery was stayed pending coordination.
Judge William F. McDonald in 2002 issued another stay pending an appeal in another case, and when Bruns’ case was assigned to Judge Charles “Tim” McCoy in 2004, he too issued a stay on all “discovery, motion and pleading activity,” lifting it after a status conference only to serve unserved parties.
McCoy never fully lifted his stay, and the case was assigned to Judge Carolyn B. Kuhl in early 2005.
That April, Kuhl entered a discovery order requiring responses to specified interrogatories and document requests, and allowed deposition dates to be set. However, she did not lift the stay until July 2006, when she ordered that the parties could conduct open discovery.
Four months later, the advertisers moved to dismiss, arguing that Bruns failed to bring the action to trial within five years as required by Code of Civil Procedure Secs. 583.310 and 583.360.
Significant Activity
Time within the five-year period is generally excluded under Sec. 583.340(b) if “prosecution” was stayed or enjoined, but Kuhl granted the motion, concluding that significant litigation activity had occurred during the periods covered by the stays, and that Bruns failed to show that progress in the action had been impossible, impracticable or futile.
But Mosk wrote on appeal that reversal was required because “prosecution” was “a broad concept encompassing all of the various steps in an action, including, but not limited to, pleading, discovery, and law and motion.”
He also rejected the defendant’s argument that periods during which limited discovery, status conferences and other-pleading related activity occurred, and during which the trial court actively managed the action, should be included in the five-year calculation.
Noting that the defense failed to identify a subsequent order lifting McCoy’s 2004 stay until Kuhl’s 2006 order, Mosk wrote that the stay “prevented plaintiff from fully conducting all of the pretrial activities to which she was entitled. That certain activity specifically authorized by the trial court occurred, does not alter that fact.”
The justice further opined that the trial court had erred in failing to exclude other time periods on grounds that bringing the action to trial within five years was impossible, impracticable or futile under Sec. 583.340(c) because Bruns had acted with reasonable diligence, and because her inability to proceed with full discovery was beyond her control.
Case Management
But Turner disagreed with the majority’s analysis, writing that it confused an action that could not proceed materially with the case management process.
“If a case is being managed, that is not the same under these circumstances as it being stayed or its progress being enjoined,” he said. “Judge Kuhl did not stay or enjoin the action; she managed it.”
Turner added that, even had there been a partial stay, Kuhl ruled correctly because the language of Sec. 530.340(b) did not allow for exclusion of time during which a “partial stay” was in effect.
The case is Bruns v. E-Commerce Exchange, Inc., B201952.
Copyright 2009, Metropolitan News Company